I wrote a while back about a hilarious brief filed in the Michigan same-sex marriage case that said that there can’t be a right to same-sex marriage because, in essence, “hell, we used to be able to lock up or shoot them bastards.” Mat Staver, the dumbest lawyer in America not named Mat Staver, tries a slightly more sophisticated version of that same argument:
A fundamental right in constitutional law has to either be specifically articulated in an enumeration of the Constitution — so a fundamental right would be freedom of speech, freedom of religion, so it’s part of the First Amendment, it’s actually absolutely articulated — and if it’s not articulated, the court has said it has to be deeply rooted in our history such that if you were to not protect it, it would literally unravel the concept of ordered liberty that is so essential to who we are and it is so deeply rooted in our history that you have to protect it. Parental rights can be something that falls within a category such as that.
Now, here, obviously, the issue is, did same-sex marriage become a fundamental right? And the answer clearly is no. If they really were honest, it’s no. And to the contrary, same-sex marriage or homosexuality has always been considered a crime against nature. Instead of protection deeply rooted, it’s been something that’s been criminalized in our culture, not just in America but around the world.
Leaving aside the fact that the Supreme Court’s division between a “fundamental right” and a “mere liberty interest” is nonsensical and drawn out of thin air from a single footnote in a decision about 80 years ago, let’s think about the implications of this. By his reasoning, Brown v Board of Education must have been wrongly decided because segregation was “deeply rooted in our history” and desegregation was a completely new idea. And Loving v Virginia must also be wrong because laws banning interracial marriage had existed from the dawn of the nation. But there’s now way Staver would admit that, of course, because it would show his argument to be nonsense.